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In Search of the Kinder and Gentler Divorce: Mediation and Collaborative Divorce vs. "Traditional" Divorce - Part II
(provided by Steven Ballard, Esq.)
WHEN MEDIATION & COLLABORATIVE DIVORCE WON'T WORK
Despite what you may read to the contrary in some of the articles on this subject, it is not only the toughest cases - involving mental health issues or accusations of abuse - in which parties to divorce are unsuitable for collaborative divorce or mediation. All it takes is for one of the two parties to a divorce to be very angry, confused, or unreasonable, and you have a situation in which the so-called "kinder and gentler" means of divorce (mediation and collaborative divorce) either won't work, or will actually both not work and cost litigants more time and money than "traditional divorce" as the parties will ultimately have to use both methods, one followed by the other.
And what is so inherently expensive and necessarily vexatious about the traditional divorce process, anyway? In Massachusetts, the divorce procedure, for contested divorce, has some built-in provisions to encourage parties to resolve their disputes "out of court": there is a six-month waiting period after the filing of a contested action for divorce before one may mark the case for a pretrial conference.
Before the pretrial conference, at which a trial date is set if the case has still not been settled by that point, there must be a four-way meeting, in which both parties and their attorneys are required to sit down and try to resolve every issue in the divorce. At any point in the litigation of a contested divorce case, the parties and their attorneys may decide to have a four-way meeting even when not required, or otherwise resolve their divorce through negotiation between the attorneys, and settle the case, much as would a couple through mediation or collaborative law.
In fact, in many of my divorce cases, which are often litigated to some degree as contested cases in court, at least one party frequently chooses not to do complete discovery, or otherwise chooses not to do all that is presumed to be required in litigated cases, either out of the belief that there is full knowledge and disclosure of relevant information needed about the other party, or on account of some degree of trust of the other side regarding basic issues or information. That is so even though there may nonetheless be one or two difficult issues to resolve, and thus there remains a need for the pressure of litigation, and the uncertainties of a pending trial, to help bring the other side to the negotiating table before any trial actually takes place.
In collaborative law, the lawyers agree at the outset not to litigate, and voluntarily exchange information, rather than engage in formal discovery, all with a view toward reaching an agreement that will preclude the need for litigation in court. But many times, such cooperation and efficiency is similarly possible between parties and their attorneys in traditional divorce cases, in which a contested divorce complaint is pending in court. In my experience, a lot of these so-called traditional divorce cases end up being as cheap or cheaper than they would be if handled by lawyers formally trained in collaborative law, and are often conducted in a much similar manner, although without the built-in difficulties of formally renouncing many of the normal tools of the attorney's trade, as in collaborative law.
There are so many variables in divorces, and really, any good divorce lawyer should be able to handle divorce in a collaborative law manner, or in a hotly litigated manner, as the case may require. That is just good lawyering, in my view. I am indeed very impressed with some of those who are highly skilled in mediation and collaborative law, as the more tools in an attorney's toolkit, the better. And on those occasions when my prospective clients do seem to be good prospects for mediation (but not collaborative law, which I think can be performed quite well by me or by any other good "traditional" divorce lawyer), I send them to a good divorce lawyer who practices mediation.
WHATEVER YOU DO, CONSULT A DIVORCE LAWYER FIRST
I would only say, at the risk of sounding self-serving, that one should avoid divorce mediators who are not lawyers. In my experience, such mediators have often misled clients in applying the law to the facts of their cases. I have had more than one case in which a psychologist acting as a mediator helped divorcing individuals to reach an agreement, only to have one of the parties discover after going to an attorney (like me) "just to check over the agreement" that the agreement had incorrectly calculated child support, or otherwise had included provisions which were really not "fair" to one of the parties, as these provisions would not have been negotiated by equally informed and equipped attorneys knowledgeable about the law and how it is applied in the courts by judges. Then the parties had to revise their agreements, or start over in their negotiations, with a competent mediator, or with two "traditional" lawyers.
Lest you assume I am self-serving to my profession in this stated preference for lawyers as mediators, I should add that I often express a bias in favor of mental health professionals over lawyers when suggesting or choosing guardians ad litem, to investigate issues of custody and parenting time, because I have found mental health professionals are more likely to be competent in that particular task, and for the same reason - i.e., their training has prepared them for it. Divorce is a legal process, involving the law of divorce. Divorce mediators should be lawyers.
Those who are contemplating a divorce should know that whether they ultimately decide they need a mediator, a collaborative lawyer, or a traditional lawyer, for their divorce, they should always pick a lawyer who is experienced and knowledgeable in the area of divorce law, and preferably one who has had recent experience in the family court where their divorce case will be heard, no matter how simple or complex they think their divorce may be, and even if they think their case can be handled mostly "out of court."
When so much is at stake, divorcing parties owe it to themselves and to their family to try to do their divorce right the first time. Simplistic slogans are not to be believed. All who are contemplating divorce should go alone to see a good divorce lawyer who can explain all of the options and give them a clear idea of their individual rights and obligations, and an honest assessment of their particular legal situation. Then, and only then, will they be confidently able to determine if they should use a mediator, collaborative lawyer, or traditional lawyer for their divorce.
BACK TO PART I
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Steven Ballard, Esq.
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